School Negligence Claims in VIC: How Families Can Seek Compensation

Schools are responsible for supervising students whenever they are under their care. This extends beyond classrooms to playgrounds, early drop-off areas, school-supervised pick-up zones, and other locations where the school has assumed oversight.

Schools must maintain their grounds and equipment to appropriate safety standards. This includes repairing hazards such as broken playground equipment, unstable tree branches, or damaged sports surfaces. High-risk items, like trampolines or woodworking tools, must be used under proper supervision.

While some injuries are considered part of normal sporting risk, schools are expected to reduce preventable harm. This includes maintaining facilities and equipment, using appropriate safety gear, and ensuring students are matched fairly for age, weight, or skill level.

Technical subjects, such as woodworking, metalwork, or science labs, must be taught by qualified staff who follow safety protocols. Negligence can arise if unqualified individuals are left in charge or if rules are ignored.

Schools can be liable if they fail to properly assess risks for activities, including swimming lessons, school trips, or overseas programs. This includes evaluating transport, water safety, and emergency procedures.

Schools are legally required to uphold anti-bullying and discipline policies. A claim may succeed if staff knew about bullying or threats but did not take reasonable action, including responding to warning signs like reports from students or social media threats.

Schools must follow care plans for students with known medical conditions or disabilities. Liability can arise if reasonable adjustments, supervision, or modifications to activities are not provided, putting vulnerable students at greater risk of injury.

Schools are legally required to safeguard students from physical or sexual abuse by anyone connected to the school, including staff, volunteers, or clergy. In situations of institutional abuse, the school is typically presumed to be negligent unless it can demonstrate that every reasonable precaution was taken to prevent the harm.

In Victoria, schools and teachers owe a non-delegable duty of care to their students. This duty is not strictly limited to the classroom or school hours and can extend to:

• Predictable arrival or departure: At school gates or nearby bus stops where staff know students congregate before or after the final bell.
• External environments: On school camps, excursions, and even overseas trips.
• Digital school environment: Where cyberbullying occurs outside of hours but has a foreseeable and direct impact on the student’s safety and well-being while at school.

A breach occurs when a school fails to take ‘reasonable steps’ to prevent a foreseeable risk of harm. Under Section 48 of the Wrongs Act, Victorian courts weigh four factors to determine if a school was negligent:

• Probability: How likely was it that the injury would occur if care were not taken?
• Seriousness: How severe was the potential injury?
• Burden: Was there a reasonable, low-cost precaution the school failed to take?
• Social utility: Did the benefit of the activity justify the risk?

Even if a school was careless, you must prove their failure was the direct cause of the injury. Under Section 51 of the Wrongs Act, we apply two tests:

• Factual causation: ‘But for’ the school’s failure to act, would the injury have occurred?
• Scope of liability: Is it appropriate for the school to be held responsible for this specific type of harm? If the injury would have happened regardless of the school’s actions, causation is difficult to establish.

In Victoria, ‘damage’ refers to the actual harm or loss suffered by the student. This generally falls into two categories:

• Economic loss: These are the out-of-pocket expenses and financial impacts caused by the injury. They include medical expenses, as well as ongoing care, future earning capacity, and educational support.
• Pain and suffering: This is a lump sum to compensate for the physical pain, emotional distress, and loss of enjoyment of life.

If the deadline for a school negligence claim in Victoria has passed, you may still be able to claim.

Under Section 27K of the Limitation of Actions Act 1958, the court can extend the time limit if they decide it is ‘just and reasonable’ to do so.

Common situations where Victorian courts may grant an extension include:

• Delayed discovery of injury: Symptoms did not manifest right away, and you only became aware of the injury years after the incident occurred.
• Latent physical complications: An injury that appeared minor at the time later degenerated into a serious condition.
• New material facts: You recently discovered evidence that was previously hidden or unknown, such as internal school emails proving staff were ‘on notice’ about a hazard but failed to act.

How the court decides

When applying for an extension in Victoria, the court will specifically look at:

• The length and reason for delay: Did you act promptly once you realised the injury was serious and linked to the school’s actions?
• Prejudice to the school: Can the school still get a fair trial? If key witnesses have left or records have been destroyed, an extension is harder to get.
• The merits of the case: Does the claim have a strong chance of success if allowed to proceed?

Most school negligence claims in Victoria take between 18 months and three years to reach a final settlement. The specific timing is influenced by several factors unique to the Victorian legal system and the nature of the injury.

Factors that influence the timeline

• Injury stability: You generally cannot resolve a claim until the student’s injury is stable (also known as reaching Maximum Medical Improvement (MMI)). For psychiatric injuries like PTSD or depression, specialists usually wait at least 12 months from the onset of symptoms or the start of treatment to ensure the permanent impairment (WPI) can be accurately measured.
• The evidence-gathering phase: Building a strong case requires a paper trail. This includes obtaining internal school incident reports, yard duty rosters, and meeting minutes through Freedom of Information (FOI) requests to the Department of Education or private school boards.
• Medical assessments: Once the injury is stable, the student must be assessed by an independent medical examiner to determine if they meet the WPI threshold. Securing appointments with these specialists can take several months.
• Liability disputes: If the school’s insurer admits fault early, the case can move quickly to a settlement conference. If they deny negligence, the process will involve a formal ‘discovery’ phase and potentially a court hearing, which adds significant time.

Yes, you can sue a school for bullying. However, you need to show that the school was negligent in its response to the situation, not simply aware of the bullying.

In Victoria, schools are generally held liable if they were ‘on notice’ about the bullying but did not take reasonable steps to prevent it. Key factors include:

• Ignoring reports: If parents or students formally reported the harassment and the school failed to investigate, document, or intervene.
• Breach of department policy: Victorian government schools must follow the Department of Education’s Bullying Prevention Policy. If a school ignores its own policy or fails to implement a required safety plan, it may be liable.
• Inadequate supervision: If the bullying occurred in outdoor areas, locker rooms, or during recess, where staff supervision was found to be below a reasonable standard.

Following significant Victorian and Australian precedents, a school’s responsibility doesn’t always end when the bell rings. In Victoria, you may have a claim if:

• The bullying occurred near school: This includes any nearby train station, bus stops, or even public parks.
• The student was cyberbullied outside school hours: If the school is aware that cyberbullying is making the school environment unsafe or causing the student to avoid school, they have a duty to address the impact on the student’s education.

In Victoria, a child being upset, anxious, or experiencing short-term emotional distress is generally not enough to bring a negligence claim against a school. Under the Wrongs Act 1958 (VIC), compensation for psychological harm is only available when the child has a recognised psychiatric condition.

To meet this threshold, a formal diagnosis from an appropriate specialist, such as a psychiatrist, is required. Examples of conditions that may qualify include:

• Post-Traumatic Stress Disorder (PTSD).
• Major Depressive Disorder.
• Adjustment Disorder.
• Severe anxiety disorders.

A brief note from a GP or school counsellor is usually insufficient. It must be demonstrated that the school’s failure—  such as not preventing bullying or ignoring clear warning signs — directly caused a clinically recognised psychiatric condition that has had a significant and ongoing impact on the child’s wellbeing or education.

Yes, you may be able to claim if your child is injured off-site. Just because an injury happens off school grounds doesn’t automatically mean the school isn’t responsible. In many situations, a school’s duty of care extends beyond the classroom, especially where the activity is organised or the risk was foreseeable.

Here’s how this typically works in practice:

School excursions, camps, and trips

When your child is on a school-organised activity, the school’s responsibility goes with them.

They’re expected to take reasonable steps to keep students safe, which usually includes:

• Providing appropriate supervision.
• Carrying out risk assessments of the venue and activity.
• Identifying and managing potential hazards.

If something goes wrong because these steps weren’t properly followed, the school may be liable.

Injuries in public parks during school hours

Public park injuries can be a bit more complex because responsibility may be shared depending on what caused the injury.

If the school is using the park for an organised activity (like PE or an excursion), they still have obligations. This includes:

• Making sure the area is suitable for the students.
• Checking for obvious hazards (like broken glass or damaged equipment).
• Ensuring there are enough staff to supervise properly.

At the same time, the local council is usually responsible for maintaining the park itself. They may be at fault if:

• The injury was caused by faulty or poorly maintained equipment.
• They were aware of the issue and didn’t fix it.

After-school incidents (beyond the bell)

A school’s duty of care doesn’t always end the moment the bell rings. If the risk is predictable and closely connected to the school environment, responsibility can continue for a short time after dismissal.

For example:

• Known risk areas: If the school is aware of issues like bullying or fights happening at a nearby park or station, they may need to take reasonable steps to prevent harm.
• Common waiting spots: Places like bus stops, crossings, or areas just outside the gates (where students are expected to gather) can still fall within the school’s responsibility during that transition period.

Injuries caused by another student off-site

If your child is injured by another student outside school grounds, you may still have a claim, but it usually comes down to what the school knew beforehand.

A school may be considered negligent if:

• There were prior reports about the other student’s behaviour.
• The risk of harm was foreseeable.
• The school failed to take reasonable steps to intervene or manage the situation.

This often applies in cases involving ongoing bullying or known behavioural issues.

You can often recover out-of-pocket costs without filing a formal lawsuit through a process known as an ‘unlitigated’ or administrative claim.

Keep in mind, while administrative claims are faster, they have a major downside: they rarely compensate for pain and suffering or future economic loss.

If your child has a permanent injury or a long-term psychological condition, an unlitigated claim will likely fall far short of the actual lifelong costs. A formal school negligence claim remains the only way to secure a full settlement that includes these larger categories.

Minor claims (Under $1,000)

For small, one-off expenses like a single dental repair, a broken pair of glasses, or an initial specialist consultation, Victorian government school principals often have the discretion to manage these directly. You will need to provide the original receipts and a clear explanation of how the incident occurred.

Note that payment at this level is usually made as a ‘goodwill gesture’ and does not mean the school is formally admitting they were negligent.

Larger administrative claims (Over $1,000)

If the medical costs are significant or ongoing, the claim is typically handled by the Department of Education’s legal services or their insurer, the VMIA.

• The process: The principal forwards your request and supporting medical evidence to a claims officer who investigates the incident.
• The outcome: This can resolve a dispute quickly without a court date, but these settlements are generally limited to reimbursement for money already spent.

Student accident insurance

Many Victorian schools, particularly Catholic and Independent schools, pay for a blanket student accident insurance policy.

• No-fault coverage: These policies can pay out even if the school wasn’t at fault. They often cover things like ambulance transport, dental work, or a fixed allowance for broken bones.
• Check the policy: You should ask the school administration for a copy of their Product Disclosure Statement (PDS) to see what is covered.